Kloch denies motion to dismiss jet boat case

by jmaloni

Fri, Oct 28th 2011 03:35 pm

by Joshua Maloni

In the mounds of paperwork accompanying legal counsels for
developer Jerome Williams and Lewiston Management Group LLC (the plaintiffs),
Whirlpool Jet Boat Tours and the Village of Lewiston (the defendants), one tiny
bit of information was missing Thursday in State Supreme Court: the original
argument bringing the opposing sides before Justice Richard C. Kloch Sr.
Without an attachment of complaint in a motion to dismiss, Kloch said, "I
cannot do what I would love to do," and that is shelve Williams' case, which
alleges the village violated the public trust doctrine.

The plaintiff contends the village's 2002 lease with the tourism
company is contrary to the required usage of the waterfront land's easement,
which is for the public benefit as a public recreation area. WJBT counsel John
Bartolomei filed a motion to dismiss Williams' lawsuit, which is what brought
the two sides together Thursday morning. Without the attachment of complaint in
Bartolomei's appendix, Kloch said Williams could appeal an unfavorable judgment
to the appellate court, which would likely send the case back to State Supreme
Court for another go-around. As such, Kloch denied the motion without
prejudice.

Bartolomei asked Kloch for permission to amend the motion to
dismiss. Kloch consented, and the two parties have a return date with the judge
tentatively scheduled for Dec. 1.

On March 24, Kloch dismissed the plaintiffs' first lawsuit, which
challenged the validity and constitutionality of the village's November 2010
decision to deed over 197.23 feet of Water Street property to Whirlpool Jet
Boat Tours and its president, John Kinney, for $1.

Three days prior,
Williams filed a second lawsuit wherein his legal team - Gregory P. Photiadis
and Elizabeth A. Kraengel of Buffalo law firm Duke, Holzman, Photiadis &
Gresens - asserted the Village of Lewiston violated Section 51 of general
municipal law and was in violation of the public trust doctrine. The lawsuit
claims the 2002 lease violates the easement requirements. It infers trustees
illegally granted the lease, which resulted in the "waste of public property."

In court Thursday, Kloch
disagreed with that assertion and said the village's action was neither illegal
nor fraudulent, thus nullifying the Section 51 statute.

What's more, Kloch said
WJBT is an ancillary and seasonal concession and, accordingly, the village did
not need the approval of the New York state commissioner of general services
when entering into the lease.

Kloch also disagreed with
the plaintiff's assertion the lease hinders the public's ability to use the
land for recreational purposes. He compared the village's agreement with WJBT
to that of the contract between New York City and the ferry operators taking
tourists to and from the Statue of Liberty. In both cases, Kloch said, the
municipalities entered into an arrangement wherein a private entity provides a mechanism
for visitors to take advantage of an attraction or landmark.

"If I follow your logic,"
Kloch told Kraengel, "(ferry service to the Statue of Liberty is) a public
waste."

Kloch said, "I would never
have an opportunity to go into the whirlpool without (a jet boat)."

When taking a jet boat
tour, the judge said his reaction was, "My God, I'm actually in the whirlpool.
I could not believe that."

"Thanks to this enterprise,
I was in it," Kloch said.

Furthermore, Kloch said
with or without the lease, WJBT would continue to operate. He said it would be
egregious if patrons could only board the jet boats from Canada. In situations
where passengers are unable to cross the border, "those people would be barred
- barred (from visiting the whirlpool)," he said.

Kloch said he was
"offended" by the plaintiff's affidavits, wherein parties claimed the jet boats
are disrupting fishermen and stealing water. The judge said he knew of
fishermen waving to the boats and passengers as they drove by.

Kraengel said the easement
usage was the core of Williams' argument, and reaffirmed his contention that
the village's agreement is contrary to the idea of public recreation along the
waterfront.

After the court session,
Kraengel said Williams "is very interested in protecting the public interest
and public use (of the land)." She said a private entity in control of the
waterfront property in question - and until the year 2042, as stated in the
lease - is not in the public's best interest.

Though it appears Williams
has an uphill battle ahead of him, Kraengel said her team would keep fighting.

"Our next step is just to
get through this motion," she said, adding a dismissal or loss in State Supreme
Court may result in an appeal.